[2004] KEHC 1789 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL APPEAL NO. 567 OF 2003 (From Original Conviction and Sentence in Criminal Case No. 1082 of 2003 of the Principal Magistrate’s Court at Nyahururu – L. K. MUTAI

STEPHEN NDERI KIONGO……………………APPELLANT

VERSUS

REPUBLIC…………………………………….RESPONDENT

JUDGMENT

The Appellant, Stephen Nderi Kiongo was charged with the offence of grievous harm contrary to Section 234 of the Penal Code. The particulars in support of the charge were that on the 20th of February 2003 at Kirimaini village Nyandarua District the Appellant did grievous harm to Lucy Njeri Gachorohiu. After a full trial the Appellant was convicted as charged and fined Kshs 45,000/= or in default four years imprisonment. The Appellant was aggrieved by the Conviction and Sentence and has Appealed to this Court.

One of the grounds of Appeal raised by the Appellant is that the trial before the Lower Court was prosecuted by a Police Officer of a rank lower than that of an Assistant Inspector of Police. In the face of this fact, Mr. Koech, Learned State Counsel conceded to the Appeal but asked that the Appellant be retried in view of the nature of the charge that faced him before the trial Court. On his part, Mr. Oumo for the Appellant, vehemently opposed that the Appellant should be retried. Mr. Oumo submitted that the Appellant should be discharged.

I have perused the proceedings of the trial Magistrate’s Court. I have noted that a substantial part of the proceedings were prosecuted by Sergeant Migwi and Sergeant Maina who are Police Officers of a rank lower than that of an Assistant Inspector of Police. This was contrary to the express provisions of Section 85(2) and Section 88 of the Criminal Procedure Code. The Court of Appeal ruled in the case of Roy Richard Elirema & Anor. –versus- Republic Criminal Appeal No. 62/2002 (unreported) (Mombasa)that where such Police Officers prosecute a Criminal Case before a Magistrate’s Court, the proceedings thereto will be a nullity. I am bound by the decision of the Court of Appeal. I hereby declare the proceedings before the trial Magistrate’s Court which led to this Appeal to be a nullity as a consequence of which the Appeal is allowed, the Conviction quashed and the Sentence set aside.

The State has submitted that in view of the nature of the offence that the Appellant was charged with, he should be retried. The Appellant, naturally does not wish to be retried. He urges this Court to discharge him. The principles upon which a retrial should be ordered in Criminal Cases was restated in the case of Fatehali Manji –versus- Republic [1966] E.A. 343. Sir Clement de Lestang, the then acting President of the Court of Appeal stated at Page 344

“In general a retrial will be ordered only when the original trial was defective or illegal ; It will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial ; even where a conviction is vitiated by a mistake of the trial Court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered ; each case must depend on its particular facts and circumstance and an order of retrial should only be made where the Interests of Justice require it and should not be ordered where it is likely to cause injustice to the accused person.”

The Appellants Counsel has referred this Court to the decision of Gabriel Njoroge –versus- Republic (1982 - 88) 1 KAR 1134which restated the legal position enunciated by the decision of Okeno –versus- Republic [1972] E.A. 32which mandates the High Court to reconsider and re-evaluate the evidence adduced before the trial Magistrate as if it was the trial Court itself. With due respect to Counsel for the Appellant the said position of the Law is only applicable in Criminal Appeals which were properly and legally conducted and not vitiated by irregularities which rendered the proceedings thereto to be null and void. In the instant case, the proceedings before the trial Magistrate’s Court having been declared to be a nullity, this Court cannot proceed to re assess and re-evaluate the null and void evidence as if the said evidence had been properly received by the trial Court in the first instance.

Applying the principles laid down by the Fatehali Manji’s case, I find that the evidence adduced by the Prosecution in the first trial were sufficient to sustain a conviction, were the proceedings not vitiated by the incompetent Prosecutor. The Complainant in the case was grievously harm and sustained lifelong injuries. The Appellant argues that he has served four months of his Sentence before being released on bail pending appeal. He submits that to subject him to rigours of a retrial would prejudice him and would not serve the ends of justice. It is my humble opinion that the scales of justice should always be balanced to address all the pertinent legal points in issue, including the interest of the Complainant and to further the administration of law and order. It would serve the interest of justice if the Appellant is retried. I do order that the Appellant be retried before the Principal Magistrate Nyahururu by another competent Magistrate other than L. K. Mutai Esq. who heard the initial case. The case should be prosecuted by a competent prosecutor. I am made to understand that the Appellant was released on bail pending the hearing of this Appeal. His bond shall be extended to the 3rd of May 2004 when he is required to appear before the Principal Magistrate, Nyahururu for the purposes of taking plea in the new trial.

DATED at NAKURU this 22nd day of April, 2004.

L. KIMARU

AG. JUDGE